Seòmar agus comataidhean

If there is time in hand, I will.

I thank Monica Lennon for bringing forward Scotland’s first ever ecocide legislation. I was delighted to be at the launch of her bill in Edinburgh a couple of years ago. We also both took time in Reykjavik, at the Arctic Circle assembly, to meet international law makers who are pushing for this change globally.

This is a truly a global green movement for change, which reflects that humanity is living through the Anthropocene—a period of lightning-fast destruction caused by just one species on this planet. It is therefore right that an offence of ecocide is reflected in law, and it should be a criminal offence of the highest order to intentionally destroy our environment and our common future.

I am pleased that the Scottish Government has accepted that principle and that it wants us to join the flotilla of countries that are embedding ecocide into their domestic legislation, but how we achieve it in Scotland in a way that dovetails with our existing laws is important. The Scottish Greens will be backing the general principles of the bill, but I am aware, through the evidence that we have taken in committee, that major amendments will be required if the bill is to pass stage 3 in the weeks ahead.

Adopting an ecocide offence cannot be a one-size-fits-all approach across the world, and Scotland’s framework of environmental law is relatively well developed, stemming from the decades that we spent in the European Union. An ecocide offence in Scotland makes sense. It would sit at the apex of our legislation with the strongest penalties available where there has been severe widespread long-term environmental damage that has been intentionally caused.

Section 40 of the Regulatory Reform (Scotland) Act 2014 also provides a way for higher penalties to be issued to those who cause some of the worst forms of environmental harm. Increasing the penalties under section 40 would provide another way to incorporate the principle of ecocide into Scots law and would align with the provision in the EU environmental crime directive.

Unlike some members, I do not see the provisions in Monica Lennon’s bill and an enhanced section 40 of the 2014 act as being direct alternatives. However, the Crown Office and Procurator Fiscal Service told the committee about the challenges of pursuing a prosecution under ecocide legislation rather than section 40 of the 2014 act and the choices that prosecutors would face in that regard. They would have to make trade-offs between the lower likelihood of a successful prosecution and the severity of a maximum sentence and a higher burden of proof under Monica Lennon’s bill’s version of ecocide. Clarity needs to be provided on how both options can co-exist and on how prosecutors and juries could navigate between the two pieces of legislation.

I note the cabinet secretary’s response to the committee, which was issued last night.

To ask the Scottish Government what action is being taken to ensure the safety of people seeking asylum who are housed in hotels across Perth. (S6O-05467)

I agree with our convener. We almost need a form of expedited process. I am not talking about a change to standing orders; I simply mean that we need a way of looking at the evidence that will come to the committee, the amendments and the views that we will receive on those amendments. I am looking forward to that process, although I think that it will involve some late nights.

It has been hard for the committee to get its head around the breadth of the bill that Monica Lennon has put before Parliament. This is really challenging stuff. At stages 2 and 3, we will need to get our heads around whether there is a consensus on key areas of the bill that need to be changed.

In her response to the committee’s stage 1 report, the cabinet secretary says that the opportunity for further reform of section 40 of the 2014 act in this session has passed. However, she will be aware that my colleague Ross Greer moved amendments at stage 2 of the Natural Environment (Scotland) Bill to increase the penalties under the RRA, and I am sure that that is an area that Green MSPs will want to address in some form at stage 2. We cannot allow perpetrators of environmental crime—especially those who have been reckless and have damaged the environment through neglect—to get away with ecocide because the crime may be too difficult to prosecute under the bill’s provisions.

In my closing speech, I will turn to some other aspects of the bill and the evidence, but I reassure Monica Lennon that Scottish Green MSPs will be voting for her bill at stage 1 at decision time.

I thank Monica Lennon and Bill Kidd for raising the legacy of Polly Higgins, who reminded us all that, to protect nature, we must change the rules. Elena Whitham also pointed to the chronic environmental injustice that many communities in Scotland have faced for generations. Such injustice was seen in William Morris’s day. He wrote very eloquently about the injustice stemming from the industrial revolution, and we are still dealing with much of that legacy here today.

It is important that we consider ecocide on a national and a global basis. Bill Kidd is right to point to the need to embed the issue of ecocide in international treaties. On my social media every day, what I see happening in Gaza constitutes ecocide—it is a systematic destruction of Palestine’s environment.

Those are bigger issues but, regarding what we have before us this afternoon, I note that there has been widespread support for the bill, particularly from Scotland’s environmental regulators, who would have to work with and make sense of the bill within the existing framework of environmental law.

A number of members have referred to section 40 of the Regulatory Reform (Scotland) Act 2014. The question of why we do not have more prosecutions has been asked. I do not know—perhaps it is because we are not seeing that level of environmental damage or because of the complexity and difficulties around bringing prosecutions under that measure.

However, I agree with Bob Doris that we need post-legislative review in this area. It is important that there is a “short, targeted review”, as the committee concluded, of whether the reasons are to do with resource constraints or other problems. Even though we are very late on in the session, I am looking for the Scottish Government to commit to having that review. If that means looking at the provisions of the bill and embedding something into it to require such a review, we should look at doing that. We cannot ignore what we already have on the statute books.

A number of members, including the cabinet secretary, have mentioned their hope that there would not be any ecocide prosecutions. I agree—I hope that we will never have a prosecution for ecocide in Scotland. That points to the power of the bill. It is a preventative and deterrent bill. Sarah Boyack spoke strongly on that point. I would have loved to hear Sarah Boyack speak in last week’s debate on my Greyhound Racing (Offences) (Scotland) Bill, which is also about deterring harm and damage.

The committee heard evidence that having an ecocide offence in legislation would help to change the culture in corporations. I would have liked to have heard more on that, and if Monica Lennon has more evidence, it would be good to hear it. However, we are starting to hear more corporate voices. Tessa Clark, the chief executive officer of Olio, and the CEOs of six Swedish multinationals have come together to say, “Look, we are the ones who are responsible and we think that ecocide should be embedded in law.” I would like to hear more corporate voices, because when the corporate sector backs the bill, we are on to something.

A number of members have talked about the need for a major change in the bill, which Monica Lennon has already acknowledged. The required change is about providing an exemption for those who already have a permit. We know that our existing habitats regulations and environmental assessments are working within the licensing systems that we have. The Government tried to introduce powers to effectively allow a major change to those regulations through the Natural Environment (Scotland) Bill, but that was stripped out of the bill. I feel confident that the systems that we have, with Environmental Standards Scotland and others gauging and reforming the licensing system, give us a robust way to go forward, and there should be a permit exemption in the bill.

I am running out of time, but I go back to a point that the committee convener, Edward Mountain, raised with me. I think that it is important for Monica Lennon to come to the committee with some clear, agreed positions on amendments for the Scottish Government. I would like to see additional written evidence and reflection from the Crown Office and Procurator Fiscal Service, from regulators and from others. There is a danger that we will run out of time for the bill, but I am confident, in agreement with Richard Leonard, that Monica Lennon will leave Scotland in a better place at the end of this session if the bill gets through.

15:25

I am happy to move the motion to enable the reconsideration of the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. Some members may be surprised to hear me speak to a second member’s bill, just days after seeing my Greyhound Racing (Offences) (Scotland) Bill through stage 1, so a little explanation is perhaps required, especially for members who were not present in session 5.

The Euro charter bill, as I call it, was introduced by Andy Wightman in May 2020, and it passed stage 3 on 23 March 2021, shortly before dissolution.

The bill incorporates the European Charter of Local Self-Government into Scots law. The fundamental purpose of incorporation is to strengthen the standing of local government in the democratic governance of Scotland through a range of measures relating to the Scottish ministers, the courts and this Parliament.

The bill was widely supported on a cross-party basis. I pay tribute to Andy Wightman for seeking to elevate the status of local government at a time when concerns about the centralisation of decision making in Edinburgh were rife and the Verity house agreement had yet to be signed.

In summary, the bill places a duty on the Scottish ministers to act compatibly with the charter and to promote self-government. The bill requires the courts to give effect to legislation in a way that is compatible with the charter. It also enables them to declare legislative provisions to be incompatible with the charter and require the Scottish ministers to take remedial action, as well as giving them powers in relation to decisions of Scottish ministers that breach their duties under the charter. Finally, the bill says that bills introduced in the Parliament need to be accompanied by a statement on their compatibility with the charter.

Following stage 3, the bill, together with the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, was referred to the United Kingdom Supreme Court by the Attorney General and the Advocate General for Scotland under section 33(1) of the Scotland Act 1998. In October 2021, the Supreme Court found that the referred provisions were outside the Scottish Parliament’s legislative competence.

The two bills were drafted differently and, therefore, the issues before the court were slightly different, but the key question on the Euro charter bill was whether the bill conferred powers on the courts to interpret and scrutinise the legality of legislation passed by the sovereign UK Parliament and whether that modified the effect of section 28(7) of the Scotland Act 1998, which states that the conferral of power on the Scottish Parliament

“does not affect the power of the”

UK Parliament

“to make laws for Scotland.”

The first provision in question was section 4(1A) of the Euro charter bill. Section 4(1) provides that legislation referred to in section 4(1A) must be

“read and given effect in a way which is compatible with the Charter”.

The Supreme Court ruled that that would sometimes require the courts to modify the meaning and effect of acts of the UK Parliament, which would produce results that the UK Parliament did not intend. Accordingly, the court decided, for the same reasons as applied to the similar section 19(2)(a)(ii) of the UNCRC bill, that section 4(1A) of the Euro charter bill would be outside the legislative competence of this Parliament.

The second provision of this bill that was in question was section 5(1), which confers on the courts the power to declare that a provision of an act is incompatible with the charter. For the same reasons as applied to the similar section 21(5)(b)(ii) of the UNCRC bill, the court decided that section 5(1) of the Euro charter bill would affect the power of the UK Parliament to legislate for Scotland, because it would modify section 28(7) of the Scotland Act 1998, so it fell outside the legislative competence of the Scottish Parliament.

If members in the chamber are still with me, we will move to session 6. With Mr Wightman not being returned as an MSP, the responsibility fell to me, as the designated member now in charge of the bill, to decide whether to move towards a reconsideration stage.

If there is time in hand, I will.

I agree with the member on that. Clearly, a long time has elapsed, and there have been considerable conversations as well as consideration by both Governments about what would be a legally robust way forward. I look forward to hearing the cabinet secretary’s comments later in the debate, but I think that we have enough time to process the bill efficiently towards a reconsideration phase.

In May 2022, John Swinney gave a statement to Parliament with an update on next steps following the judgment. He said that, although the Euro charter bill was a member’s bill, the Scottish Government remained committed to supporting it. Since then, my approach as the designated member has been to respect the will of the Parliament that was expressed in session 5 and to allow the Scottish and UK Governments the opportunity to resolve the issues at the heart of the Supreme Court judgment.

During session 6, I have kept the opportunity to fix the bill open, and I have liaised with both the Scottish Government and the Convention of Scottish Local Authorities throughout.

In October 2024, the Scottish Government confirmed that it would lodge and speak to the necessary amendments, given its experience with the 2023 bill reconsideration stage.

Under standing orders, only the member in charge of a bill may propose that the Parliament reconsider a bill following a reference to the Supreme Court. I have lodged the motion to do so, which we will consider today. I urge members to vote for the motion so that we can allow amendments to be made and so that the bill can, I hope, be agreed to again and move towards royal assent.

I thank the cabinet secretary for engaging with me on the bill. As I said, it has taken a long time to get to this point. I am aware that there are many bills up for debate at this late stage of the parliamentary session, but I hope that it will be a relatively easy and efficient process to get the bill back over the line to the satisfaction of all who are concerned and that there will be no further delay.

I move,

That the Parliament agrees to reconsider the European Charter of Local Self-Government (Incorporation) (Scotland) Bill.

17:15

I thank members for their contributions, and I thank COSLA and, in particular, those in its political leadership, who have been absolutely relentless over the past four years in driving towards the line and trying to get the bill back over the line. It has been great to work with them. I also thank Roz Thomson from the non-Government bills unit, who has kept the bill on life support over the past five years.

Before returning to Holyrood in 2016, I spent five years as a councillor in Stirling, and it really left a mark on me, with the importance of strong, accountable, empowered local government. It is absolutely critical; it is the level of government that works closest to the people.

Comments have been made about the Verity house agreement. I do not view it as an end point; it is a start, and it has helped to reset the relationship. I agree with Alex Cole-Hamilton and Alexander Stewart that there is a long way to go.

The bill gives us an opportunity to embed the principles further into the work of both the Scottish Government and the Parliament in the next session. I note that the Verity house agreement committed the Government to embed the European charter into law. That is what local government wants, and it is normal across Europe. If we can get the amendments through and get the bill over the line, that is exactly what it will do.

I will make some brief comments about the amendments that the Government will be proposing. Sections 4 and 5, on interpretation and declarations of incompatibility, will be amended to restrict their application to acts of the Scottish Parliament and Scottish statutory instruments. As the cabinet secretary has outlined, the Government amendments will go further than the two sections of the bill as considered by the UK Supreme Court. They will include amendments, under section 2, to the duty on Scottish ministers to act compatibly with the charter.

We have heard that that is being done on the basis that the Scottish Government, through engagement with the UK Government, has not been able to rule out the possibility of a further referral if section 2 is not amended during the reconsideration stage. That is regrettable. I would ask Mark Griffin to reflect on the fact that there has been a conversation between two Governments—a Labour Government and an SNP Government—and I would have preferred those amendments on section 2 not to have been drafted. However, we are where we are. The amendments will reduce the reach and effect of the bill, because much legislation in devolved areas, such as in education, is still contained within the UK legislation.

My priority, as the designated member, is to see the bill pass the reconsideration stage, avoiding any further referral to the UK Supreme Court. COSLA is content with that approach. It is disappointing that it has taken so long to get clarity on that point from the UK Government but, on balance, it is a lot better to have a bill moved to royal assent than for it to be struck down again and to have an uncertain future, dragging into session 7 of the Parliament.

I will end with the words of Andy Wightman, who said in the stage 3 debate five years ago:

“We are strengthening our democracy; in particular, we are strengthening the institution of our system of government that lies closest to the people … so that it might serve them better and more effectively and be more responsive to the wishes of local communities, rather than the political imperatives in Edinburgh.”—[Official Report, 23 March 2021; c 80.]

I agreed with those words then and I agree with them now. I urge members to back the motion for reconsideration of the Euro charter bill.

I thank members for their contributions, and I thank COSLA and, in particular, those in its political leadership, who have been absolutely relentless over the past four years in driving towards the line and trying to get the bill back over the line. It has been great to work with them. I also thank Roz Thomson from the non-Government bills unit, who has kept the bill on life support over the past five years.

Before returning to Holyrood in 2016, I spent five years as a councillor in Stirling, and it really left a mark on me, with the importance of strong, accountable, empowered local government. It is absolutely critical; it is the level of government that works closest to the people.

Comments have been made about the Verity house agreement. I do not view it as an end point; it is a start, and it has helped to reset the relationship. I agree with Alex Cole-Hamilton and Alexander Stewart that there is a long way to go.

The bill gives us an opportunity to embed the principles further into the work of both the Scottish Government and the Parliament in the next session. I note that the Verity house agreement committed the Government to embed the European charter into law. That is what local government wants, and it is normal across Europe. If we can get the amendments through and get the bill over the line, that is exactly what it will do.

I will make some brief comments about the amendments that the Government will be proposing. Sections 4 and 5, on interpretation and declarations of incompatibility, will be amended to restrict their application to acts of the Scottish Parliament and Scottish statutory instruments. As the cabinet secretary has outlined, the Government amendments will go further than the two sections of the bill as considered by the UK Supreme Court. They will include amendments, under section 2, to the duty on Scottish ministers to act compatibly with the charter.

We have heard that that is being done on the basis that the Scottish Government, through engagement with the UK Government, has not been able to rule out the possibility of a further referral if section 2 is not amended during the reconsideration stage. That is regrettable. I would ask Mark Griffin to reflect on the fact that there has been a conversation between two Governments—a Labour Government and an SNP Government—and I would have preferred those amendments on section 2 not to have been drafted. However, we are where we are. The amendments will reduce the reach and effect of the bill, because much legislation in devolved areas, such as in education, is still contained within the UK legislation.

My priority, as the designated member, is to see the bill pass the reconsideration stage, avoiding any further referral to the UK Supreme Court. COSLA is content with that approach. It is disappointing that it has taken so long to get clarity on that point from the UK Government but, on balance, it is a lot better to have a bill moved to royal assent than for it to be struck down again and to have an uncertain future, dragging into session 7 of the Parliament.

I will end with the words of Andy Wightman, who said in the stage 3 debate five years ago:

“We are strengthening our democracy; in particular, we are strengthening the institution of our system of government that lies closest to the people … so that it might serve them better and more effectively and be more responsive to the wishes of local communities, rather than the political imperatives in Edinburgh.”—[Official Report, 23 March 2021; c 80.]

I agreed with those words then and I agree with them now. I urge members to back the motion for reconsideration of the Euro charter bill.